Daily Comment on News and Issues of Interest to Michigan Lawyers

January 2012

01/31/2012

The Vermont Supreme Court has just unanimously overturned a conviction for molestation because a juror did online research on the defendant's ethnic culture, but if a recent survey of federal judges is right, the great majority of jurors are behaving themselves when it comes to turning off their cellphones, avoiding researching cases on the web, and not texting about the cases they're sitting on. The survey had an impressive 53% response rate. From the summary of the report (PDF) of the survey, provided to the Judicial Conference Committee on Court Administration and Case Management:

The detected use of social media by jurors during trials and deliberations is not common, but it does occur. Thirty of the 508 responding judges reported instanc- es in which jurors were detected using social media during trial or deliberation, most often in criminal cases. This social media use most often took the form of posts about the progress of the case or the juror’s service in general. There were several instances of jurors attempting to contact participants in the case via social media. When social media use was detected, it was most likely to be reported by a fellow juror.

Every week someone has done something which helped, motivated or touched you. Send them an old fashioned snail mail note to thank them! Make it a Friday afternoon, winding-down-the-week scheduled task. If you encountered someone who needs encouragement, send them a note. If the court clerk was especially helpful or the security guard at the court house extended you a helping hand, send them a note. Ending your week with a random act of kindness is uplifting and good marketing!

01/30/2012

Two Big Thinkers in the where-in-the-world-is-the-legal-profession-headed? universe have teamed up to launch a new blog, The Legal Whiteboard. SBM Blog will be watching. Here's an excerpt from the first post, by IU-Bloomington's Bill Henderson, explaining its purposes:

Despite the fact that I am one of the go-to people on the speaker circuit when it comes time to talk about structural change, I am not in the sky-is-falling camp. Instead, I see a lot of opportunities for lawyers, law students and legal educators to do very important and creative work. What is most exciting about this work is that it will make society better off – law will become better, faster and cheaper. Many legal services will become more standardized, productized and commoditized. I realize that these words will rankle some of the old guard, particularly those still making a good living under the bespoke model. But clients – including corporations, government and ordinary citizens—will love it. Professional ideals will remain the cornerstone of successful legal enterprises, but denying the exigencies of the marketplace is, to my mind, unprofessional.

Because clients and society want better, faster and cheaper law, I believe lawyers (including legal educators) have a professional duty to ardently pursue this goal. The hardest part of this assignment – and the most vexing and interesting – is how to parlay this transformation into a decent living.

Many people assume that the new paradigm means lawyers working longer hours for lower wages. That is one future business model. But I think it utterly lacks imagination. Lawyers are problem solvers. To my mind, the growing price elasticity for legal services and legal education is just a very difficult problem. And whenever I am faced with a very difficult problem, I typically start writing out my thoughts on a massive whiteboard. (I am told it is quite a spectacle to behold.) I am also someone who loves to collaborate. With an outward facing Legal Whiteboard, I am hoping to elicit the genius of my fellow travelers.

The ethical implications of cloud computing have yet to be incorporated into the Model Rules of Professional Conduct and beyond, but Slaw gives you some food for thought just in case (ahem) you failed to read all of the terms and conditions of iCloud carefully. Just for example, the authors point out:

One interesting item is “The Find My iPhone and Find My Mac features are intended for your personal use only.” Does that mean you cannot use the features in a commercial setting? Probably not, but it’s not very clear.

As reported in the Law Society Gazette, the President of the UK's Law Society told a gathering in Oxford that he expects the centuries-old English distinctions in the legal profession between barristers and solicitors will "whither away" as a result of recent sweeping changes in the UK laws regulating the profession.

It is ‘inevitable’ the professions will ‘need to revisit the question whether [they] should continue to be separately trained, represented and regulated. I envisage the time coming when the distinction will be more a decorative than a functional aspect of our legal constitution.

There's a lot of "signing off" going on all the time in the legal profession, so this story deserves some attention. In The Atlantic's "Signing Off: The Slow Death of the Signature in a Pin-Code World," University of Toronto professor of semiotics and anthropology points out the importance of signatures in human history:

"We've always marked our existence," says Danesi. "Tribal cultures left the communal mark, or the kinship mark, on their surroundings. The mark could have been the figure of an animal, or a tree, or anything in their immediate environment. And that mark meant this group of people was a family."

But the bottom line is that PIN-code transactions are "much less susceptible" to fraud than signatures, and the signature as a mark of authentication is losing ground. This piece from the July 2001 Michigan Bar Journal nicely marked the moment when state laws began to acknowledge that times are changing. And the abandonment of the teaching of cursive handwriting surely plays is more handwriting on the wall.

Vielleicht. The issue in the case from Dusseldorf, Germany is this: did the family dog suffocate the drunk woman while she was lying passed out on her bathroom floor, or is her husband responsible for her death? He had been convicted in the first trial, but an appeals court ordered the case retried on evidence that the man was too drunk to have had intent. On retrial, defense counsel argued that labrador mothers sometimes accidentally smother their newborn pups, so death-by-Labrador-suffocation is a reasonable explanation for the death. The prosecution has offered expert testimony by a man from a local Labrador club, who says that the explanation is not plausible. Legal Blog Watch wonders if it might be helpful to check what a doctor might have to say on the subject. Sometimes maybe you need more than one kind of expert to answer the same question.

01/29/2012

Privacy advocates are cheering United States v. Jones, last week's U.S. Supreme Court decision holding that police need a warrant to track suspects by GPS. NYU law professor Barry Friedman says "not so fast." In "Privacy, Technology and the Law" in Sunday's New York Times Friedman stands up for the proposition that fundamental rights remain fundamental in the face of time and new inventions, and worries that declining expectations of privacy are irreversibly eroding legal privacy protections:

Among the justices in the Jones case, only Sonia Sotomayor insisted that fundamental rights not be hostage to technological change. She called into question the court’s longstanding reliance on expectations of privacy, which she deemed “ill-suited to the digital age.” She suggested reconsidering the rule that the police can, without a warrant, get the vast amounts of information about ourselves that we give to third parties. To her, sharing our secrets — including e-mail and banking histories — with someone else does not necessarily mean the government gets access, too. It is too bad her separate opinion mustered no other votes.

Friday's Michigan Supreme Court order (PDF) granting a request to file an amicus brief in In Re Executive Order of the Governor (Brown v. Snyder) revealed an interesting lack of consensus on the Court about certified questions, or perhaps just about the question of the certified question on the Emergency Manager law. Brown v. Snyder was filed in Ingham County in June challenging the constitutionality of the law. In August, the Governor asked the Court to take up the constitutional questions at issue on an expedited basis, as permitted under MCR 7.305(A) when the Governor believes that a case involves controlling questions of public law “of such public moment as to require early and final determination” by the Court (PDF). Briefs were filed in September. On November 2, the Court issued an order directing the parties to answer substantive questions by mid-December. Friday’s order deals only with the motion on amicus status, but states that the Executive Message “remains under consideration.” In light of the procedural history, Justice Markman wonders:

“Under consideration” for what? “Under consideration” until when? A lawsuit was filed in the Ingham Circuit Court in June of last year; the Governor then filed an Executive Message in August requesting that this Court direct the Circuit Court to “certify” certain constitutional questions for the consideration of this Court; briefs were filed in support of, and in opposition to, such certification; this Court then directed the parties to file briefs addressing the substantive questions raised by the Executive Message; and, in December of last year, the parties filed such briefs. What then requires that this matter “remain under consideration”?

Meanwhile, as stated in Friday's order, Justices Cavanagh and Marilyn Kelly would decline the request for certification of the Governor’s Executive Message.

In contrast to a similar First Amendment case in the 11th circuit, Julea Ward's challenge to her dismissal from Eastern Michigan's masters in counseling program is still alive after a 6th circuit decision issued Friday. Ward objected to counseling gay and lesbian patients in a manner that affirmed their sexual orientation and EMU dismissed her from the program, stating that her refusal placed her in violation of university policies based on American Counseling Association standards. Ward sued claiming that Eastern's disciplinary policies and codes of conduct are unconstitutional "speech codes" as well as infringements upon her Fourteenth Amendment Due Process rights; that Eastern retaliated against her for exercising her rights and violated her First Amendment right to be free of compelled speech and the Establishment Clause and engaged in viewpoint discrimination; and violated her Fourteenth Amendment Equal Protection rights by dismissing her from the program on the basis of her Christian beliefs and expressions opposing homosexual conduct. Federal district judge George Steeh granted summary judgment for Eastern.

The unanimous 6th circuit opinion (PDF), authored by Jeffrey Sutton, said that at this stage of the proceedings neither side deserves to win as a matter of law, and that a reasonable jury could conclude that Ward's professors dismissed her from the program because they were hostile toward her speech and faith, not because she violated a policy in place at the time of her dismissal.